(on rehearing). Attention is called in the petition for rehearing to the appellee’s proof that certain expenses were incurred in the preparation to occupy the building in question which would not have been otherwise incurred, and on this theory it is said we are in error in distinguishing between the expense of removing into and the expense of removing out of the building. The expense of removing from a building is always a recoverable element of damages, while the expense of removing into a building may, or may not, be, according to the circumstances under which the move is made. If the tenant is moving anyhow, regardless of the contract of tenancy then there can be no recovery of that expense, unless the removal made in accordance with the contract is more expensive than the one which would otherwise have been made, in which event this excess of cost may be recovered. But if the tenant incurs the expense of a removal which would not have been made, except to perform the contract of tenancy, then the cost of removing into the building as well as that of removing therefrom may be recovered, in case of a wrongful eviction. The rule here announced will determine upon the trial anew whether appellee shall recover the item of expense of removing into the building.
It is also urged that appellee should be given the option of accepting judgment here for such of the items as the undisputed proof shows he was entitled to recover. Of all the items sued for we can only say that items -8,10 and 14 could be thus classified, but at his option appellee may have judgment here for these items amounting to $24, if he shall so elect within fifteen days from this day, in which event he will have judgment for that amount and all costs of this suit, except the costs on this appeal. Otherwise the judgment will be reversed and the cause remanded for a new trial.